Al Gore wins the Nobel Peace Prize. “Climate Change” and “Global Warming” are now topics of daily news articles, web debates, and dinnertime conversations. Many states are not waiting for the federal government, and instead are undertaking initiatives to reduce greenhouse gas emissions. The most efficient and available clean energy source across the U.S. at this time – wind power – is drawing the attention not only of American energy companies and developers, but also from those around the world who seek to build wind farms in the U.S. Yet proposed wind projects, including one represented by this article’s author, still often face fierce local opposition from certain environmental groups claiming unreasonable biological, economic, or scenic impacts. As with climate change, there has been a growing volume of objective empirical data over the past few years assessing not only the need for clean renewable energy, but also the economic and environmental benefits of such energy sources as wind power. This article can only briefly touch on some of the results, and guide the way for the reader to find additional detailed information and reports.

Model Wind Power Framework and the Need for Wind Power in

Maine and New England

In May 2007 Maine Governor John Baldacci created a Task Force on Wind Power Development in Maine to completely review and overhaul the regulatory process for review of proposed wind power projects. Although Maine has one of the largest on-and-off-shore wind resources in United States, it has very little installed wind capacity—only one wind farm with 42 MW of installed capacity from 28 turbines.[1] The Task Force and interested parties have been compiling data and studies from across the country about all aspects of wind power development, and conducting hearings on the topics.[2] Several consulting firms were retained by some environmental groups to prepare and recently present a model wind power framework for Maine and New England, including analysis of such data as regional renewable energy demand targets, on- and off-shore wind potential, a regional supply curve, and the likely or necessary quantities and locations of future wind power development over the next 20 years.[3]

Presently, wind projects proposed in Maine’s rural areas (the “unorganized territories”) must demonstrate a need for the project in the community, area, and state. Since the July 2006 developer hearing presentations coordinated by the author, proof of such need generally has focused upon not only the traditional benefits of tax payments and jobs, but also such factors as: (a) decreasing the state’s over-reliance on fossil fuels, thus reducing the cost and price volatility of electricity; (b) assisting the state in meeting its environmental targets to increase its renewable energy portfolio and reduce greenhouse gas emissions; and (c) providing health benefits to local and state residents by decreasing air pollution. Maine has the largest renewable portfolio standard in the country, and a recent law requiring an additional 10 percent of its energy to be generated from renewable energy sources by 2017.

Climate Change and Greenhouse Gas Initiatives

Like many states, Maine has a Climate Action Plan. Maine has also implemented a greenhouse gas initiative by legislation and by entry into the Northeast’s Regional Greenhouse Gas Initiative (RGGI), which involves all states from Maine south to Maryland with the exception of Pennsylvania. The RGGI is a market-based cap and trade program designed to reduce carbon dioxide emissions from electric power plants. It will be fully launched on January 1, 2009, affecting electric plants generating more than 25 megawatts that were on-line before 1/1/05 and whose fuel inputs are 50 percent or more from coal, natural gas, or oil; for post-1/1/05 plants, RGGI applies if fossil fuel makes up 5 percent or more of the annual heat input. The RGGI goal is that by 2018, each state’s emissions budget will be 10 percent below its initial CO2 emissions. Reduced emissions

(through using clean, renewable energy like wind) help states meet their RGGI goals.[4]

On a more global basis, Al Gore’s 2007 co-Nobel Laureate was the Intergovernmental Panel on Climate Change (IPCC), which has been busy issuing a number of detailed reports for several years. In November 2007 the IPCC issued its “Synthesis Report,” intended to create for policymakers a single unified picture of the science, impacts, and mitigation of climate change. The report reaffirms that global warming is a scientific fact; that it is largely caused by human activities; that without immediate intervention measures over this century, there will be many serious changes including more droughts and intense storms, sea level rise, and habitat loss; and that developing many more clean, renewable energy sources is a necessary step in the effort to avoid ecological catastrophes for our children’s and grandchildren’s generations.[5]

Climate Change Impacts on Maine and the Northeast

Application of the IPCC’s research to Maine and the Northeast was recently completed in the form of The Northeast Climate Impacts Assessment (NECIA), a collaborative effort between the Union of Concerned Scientists (UCS) and a team of independent experts.[6] Their peer-reviewed studies and predictions focused both on the region itself as a whole and on the individual Northeastern States, and warned of dramatic and damaging changes to our weather patterns, coastlines, forests, wildlife, public health, and lifestyles. As Maine’s DEP Commissioner said in response to the report: “Global warming is the largest threat facing our environment today. The ecological and human health impacts are potentially devastating to Maine’s character and quality of life.” The same could be said for the region, the country, and the world.

The NECIA report on impacts on Maine’s forests, wildlife, and economy[7]

mirrors predictions made nine years earlier by the Environmental Protection Agency’s “Climate Change and Maine”.[8] Sea level rise, changes in forest, bird, and pest species, and resultant economic dislocations to the forest products and other business sectors were predicted in 1998 and again in 2007—only now, the pace of climate change has been moving more rapidly than anyone expected.

Economic Impacts of Wind Farms

Although some opponents of wind power claim that turbine visibility will harm local tourism and property values, recent studies show neutral to positive impacts on tourism and no adverse effects on real estate markets. For example, a 2004-5 federal government report reviewed more than a dozen wind projects across the United States, from New England to the West Coast, and found that wind power has a positive effect on rural economies.[9]

Likewise, many studies focusing on property values have shown no adverse effects on property values from wind farm development. For example:

A January 2007 report by a certified real estate appraisal firm focusing on property sales from 1998 to 2006 near two utility-sized Wisconsin wind farms found they caused no measurable differences to home values.[10]

An April 2006 Bard College study of a 20-turbine wind project in Madison County, New York analyzed 280 single-family residential sales from 1996 to 2005 within five miles of the turbines. There were “no measurable effects of windfarm visibility on property transaction values…even when concentrating on homes within a mile of the facility.”[11]

A 2003 study by the Renewable Energy Policy Project of 25,000 property sales within view of ten wind farms in seven states, including states in New England, concluded that “the statistical analysis does not support a contention that sales within the view shed of wind developments suffer or perform poorer than in a comparable region. For the great majority of projects in all three of the cases studied, the property values in the view shed actually go up faster than values in the comparable region.”[12]

Key Wildlife Impacts of Wind Farms

In order to address concerns of regulatory agencies and wind power critics, many studies have been conducted on actual and potential impacts of wind farms on wildlife (particularly migratory birds) and, more recently, bats. A summary of known avian collisions with wind turbines outside of California (which had older, more poorly-designed turbines) indicates a fatality rate of 1.83 per turbine per year.[13] More recently, a study at the Maple Ridge Wind Farm in New York estimated fatalities of between 3-9 birds/turbine/season (season being about 125-152 days). [14]

To compare approximately 2-4 birds/turbine/year with fatality events reported at other types of tall structures, such as tall communication towers and buildings, one can look at the following table to see that mortality at wind energy projects is many orders

There have been few studies on bat mortality. Most have focused on Virginia and West Virginia where there are more caves as well as largely deciduous forest habitats. Outside of a study at Searsburg, Vermont (P. Kerlinger 2002), which failed to document any bird or bat mortality, there are currently no published studies of bat mortality for wind power facilities in New England. For facilities located on temperate forest ridges in the Southeast and Mid-Atlantic, fatality rates range from 15.3 to 41.1 bats per megawatt (MW) of installed power, per year.[16] Bat fatalities appeared to be greater at turbines nearer to wetlands (Jain et al 2007). Wind turbines on higher, more windy and sub-alpine ridgelines are expected to have far fewer bat fatalities.

The primary reason for very low rates of bird and bat mortality is that they migrate at altitudes wellabove the rotor-swept area. All post-2004, published (59) and unpublished (72) studies to date have consistently documented that birds and bats fly well above (i.e., 1000 to 2000 feet above) the turbine blades during migration periods.

Conclusions

Not only environmental lawyers, but all concerned decision-makers and citizens must confront the largest threat to our public’s environment, health, and property in decade: climate change from global warming due to greenhouse gas emissions. This century’s realities require prompt and decisive action on many fronts, only one of which is the expedited permitting and construction of clean, renewable, and indigenous sources of power for our homes and businesses. It is critical that we help advocate not only for individual projects, but also for modernized policy- and decision-making that balances traditional environmental wildlife concerns with the new threats to wildlife, forest, coastal habitats, and our way of life. The need is urgent. The time is now.

[1] As of December 2007 there are three proposed wind farms that have received some regulatory review, totaling 243 MW. Studies suggest there is significantly more wind capacity developable in Maine, and of course many more times that across the United States.

[2] The Task Force web site has a wealth of information, including a number of presentations, and is at: http://www.maine.gov/doc/mfs/windpower/summaries.shtml

[3] The October 30, 2007 presentation can be found at: http://www.maine.gov/doc/mfs/windpower/meeting_summaries/103007_summary_files/Grace_Wind_Task_Force_103007.pdf

[4] A recent presentation by Maine DEP Commissioner David Littell summarizing wind power and its

greenhouse gas and air quality benefits is at: ttp://www.maine.gov/doc/lurc/minutes/080107/Littellpresentation.pdf

[5] The general IPCC website is at: http:www.ipcc.ch/ A summary of the Synthesis Report can be found at: http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf

On September 25, 2007, the Interstate Oil and Gas Compact Commission (IOGCC) issued its model program for the storage of carbon dioxide in geologic formations. The full text of the model program can be found here.

OVERVIEW - Even though USEPA has announced that it will undertake the development of regulatory program for such activities under the Safe Drinking Water Act, the IOGCC model program is premised on the belief that the regulation of CO2 geological storage should be left to regulation by the states, rather than USEPA. Equally significant is the IOGCC view that the storage of CO2 in geological formations should be viewed as the storage of a commodity - not waste disposal. While the IOGCC proposes its CCS program in anticipation of a national program that would constrain the emission of CO2 to the atmosphere, the IOGCC avoids making recommendations about how CO2 should be constrained.

PROPERTY RIGHTS - The model program provides that an applicant for any such project should acquire the property rights to use pore space in the geologic formation for storage. While much of the IOGCC’s model program addresses the need to acquire property rights through negotiation, eminent domain or unitization of oil and gas rights, the model program specifically states that the IOGCC is less concerned about what mechanism is used to acquire those rights and is more concerned that all necessary property rights be acquired by valid, subsisting and applicable state law. The IOGCC goes on to recognize that states might develop alternative mechanisms to acquire property rights, such as adapting the concept of the forced unitization of oil and gas industry rights to other property interests. An applicant must demonstrate that a good-faith effort has been made to obtain the consent of a major of owners "having property interest affected by the storage facility." The program provides for an applicant to have the power of eminent domain and provides that an applicant will be deemed to have necessary property rights to the extent that the applicant has initiated unitization or eminent domain proceedings and have thereby gained the right a of access to the property.

COVERED FACILITIES - The definition of "storage facility", includes the reservoir, wells and related surface facilities but apparently not pipelines used to transport carbon dioxide from capture facilities to the storage and injection site. The IOGCC has stated its intent to consider over the next year, how its model program might best be expanded to include pipelines.

LIABILITY RELEASE - Following completion of the project an operator would be obligated to monitor the project to assure its integrity. At the completion of that period, title to the facility would be transferred to the state and the operator and all generators of CO2 injected would be released for all regulatory liability and any posted performance bonds would also be released. Over the next year, the IOGCC has stated that it will consider the possibility of expanding the liability release to include common law tort liability. As part of the inducement for a state to allow liability transfer, the program establishes a trust fund which would assess a fee on each ton of CO2 injected. The trust fund provides the financial resources for the state to take title to project at the end of its operating life.

COOPERATIVE AGREEMENTS - Cooperative agreements are authorized for use in connection with projects that extend beyond state boundaries.

EOR PROJECTS - Enhanced Oil Recovery projects are not covered by the model program, although agencies are encouraged to develop rules on how enhanced recovery operations would be converted to carbon dioxide storage projects.

PERMIT REQUIREMENTS - The program provides detailed requirements for completing an application for approval of a CCS project. Among other things maps accompanying a permit application would be required to identify existing oil and gas and coal mining operations. Public notice is completed upon mailing. The agency shall issue a permit to drill and operate once it has completed a review of the application. The permit would expire within twelve months from the date of issuance if the permitted well had not been drilled or converted. The program also sets forth detailed well operational standards, including requirements for safety plans, leak detection, and corrosion monitoring and prevention.

This article was authored by David M. Flannery, Jackson Kelly PLLC. For more information on the author see here.

Each year thousands of salmon and steelhead protected under the Endangered Species Act (“ESA”) migrate up and down the Columbia River and its tributaries and into the Pacific Ocean as part of the species’ cycle of life. Seemingly, each year armies of lawyers migrate to federal court to argue whether the federal government is carrying out its obligations to protect these species under the ESA. “As part of the modern cycle of life in the Columbia River system, each year brings litigation to the federal courts of the Northwest over the operation of the Federal Columbia River System (“FRCPS”) and, in particular, the effects of system operation on the anadromous salmon and steelhead protected by the Endangered Species Act.” National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005).

2008 is no exception as the National Wildlife Federation, the state of Oregon and the Nez Perce Tribe have again filed a lawsuit in the United States District Court of Oregon against the federal government for allegedly failing to carry out their obligations under the ESA in the operation of the FRCPS. The precipitating event for the 2008 lawsuit, is a 2008 Biological Opinion authored by NOAA Fisheries pursuant to Section 7 of the ESA opining that if the action agencies, the U.S. Army Corps of Engineers (“COE”) and U.S. Bureau of Reclamation (“BOR”) carry out a comprehensive reasonable and prudent alternative (“RPA”) then jeopardy to the listed species and adverse modification to critical habitat will be avoided.

The portion of the FRCPS that is at issue in the 2008 litigation is a series of fourteen (14) federal hydropower dams authorized by Congress on the Columbia and Lower Snake Rivers which are operated by the COE and BOR. Congress has directed that the dams are for multiple uses including providing power to the Northwest, irrigation, transportation, recreation, flood control and protection of fish. The stakes are high in the litigation, if some of the dams are substantially modified, or breached as some Plaintiffs are advocating, industries, rate-payers and communities reliant upon the multiple uses of the FRCPS will be significantly affected. Thirteen separate salmon and steelhead species that live out a portion of their life cycle in the Columbia River and its tributaries have been listed as endangered or threatened under the ESA.

The federal government’s attempt to operate the FRCPS in compliance with ESA has been mired in litigation for some 15 years. The science and the law surrounding the FRCPS’ compliance with the ESA is complex. Like 2008, the precipitating event for past litigation has been a § 7 consultation between NOAA fisheries and the COE and BOR and a Biological Opinion (BiOp) and Incidental Take Statement. In recent litigation the federal government has not fared well. For example the 2000 BiOp found that the FRCPS operation did jeopardize certain listed species but that jeopardy could be avoided if off-site mitigation and hatchery initiatives were implemented. The court found the 2000 BiOp was invalid as NOAA could not rely upon off-site and non-federal actions that were not reasonably certain to occur as an RPA. SeeNWF v. NMFS, 254 F.Supp. 2d 1196 (D.Or 2003).

The federal government tried again with a 2004 BiOP which found no jeopardy to listed species and no adverse modification to critical habitat. The 2004 BiOp was different from prior BiOps in so far as NOAA Fisheries attempted to segregate the effects of the existence of the 14 dams from the operation of the dams claiming that only the operation of the dams was discretionary and subject to Section 7 consultation. The lower Court struck down the 2004 BiOp on a variety of grounds finding that NOAA improperly separated the existence and operation of the dams in their § 7 consultation, NOAA did not properly take into consideration how the operation of the dams would affect recovery of the listed species and their critical habitat and that the actions relied upon were too uncertain to occur. The Ninth Circuit affirmed the lower Court decision in its entirety. See National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2008). The Ninth Circuit did note that in considering the affect of the agency action on the potential recovery of the species in connection with a Section 7 consultation, NOAA Fisheries did not have to first develop a recovery plan consistent with the requirements of Section 4(f) of the ESA.

While the appeal was pending before the Ninth Circuit, NOAA Fisheries under some prodding from the lower Court embarked upon an unprecedented collaboration with the four affected states (Washington, Oregon, Idaho and Montana) and eight Indian tribes to reach consensus on the appropriate methodologies to evaluate the effects of the FRCPS on listed species, operational modifications focusing on each of the listed species and hundreds of millions of dollars in funding commitments to the Tribes to carry out mitigation. In developing the 2008 BiOp and RPA, NOAA Fisheries also adopted a “trending to recovery standard” in order to fulfill the directive from the Court concerning the evaluation of survival and “recovery” in a Section 7 consultation. The 2008 BiOp finds that operation of the FRCPS for the next ten (10) years with implementation of the comprehensive RPA will avoid jeopardy to the thirteen species, avoid adverse modification to critical habitat and future recovery of the protected species will not be compromised by implementation of the RPA.

The Plaintiffs quickly challenged the 2008 BiOp arguing it is legally and technically flawed and more of the same. The federal defendants, a trade association, three states (Washington, Idaho and Montana) and one Tribe argue that based on Court directives the 2008 BiOp got it right this time. The Defendants argue that Plaintiffs challenge is nothing more than a disagreement on the science and that the court should defer to NOAA Fisheries on these issues. Of interest to Clean Water Act attorneys, one of the Plaintiffs (“NWF”) argues that the incidental take statement (“ITS”) issued as part of the 2008 BiOp is equivalent to a “permit” under § 401 of the Clean Water Act and therefore requires water quality certification from the states. If the Plaintiff prevails on this novel theory, it means that potentially four states and three Tribes would need to issue a 401 certification that the ITS will comply with state and tribal water quality standards before the ITS would go into effect.

A preliminary injunction and summary judgment hearings are set in January 2009. If the Court finds that the disputes surrounding 2008 BiOp are basically scientific disputes a recent Ninth Circuit case could be beneficial to the federal defendants. See, Lands Council v. McNair, 537 F.2d 981 (9th Cir. 2008). In Lands Council, the court noted that federal courts should defer to the scientific judgments of a federal agency when reviewing agency action under the Administrative Act Procedures. Stay tuned to the outcome of this litigation to see if the “cycle of life” of litigation in FRCPS continues or takes a breather to give the federal government, the states and tribes a breather to implement the 2008 BiOp.

Public companies are feeling pressure to make disclosure of the risks posed by climate change. The SEC has to date declined to issue any climate change-specific guidance, but existing SEC regulations are broad enough to require disclosure, if the information would be important to the “reasonable investor.” Investors and shareholders are increasingly vocal about their desire to have that information.

In the absence of SEC action, New York Attorney General Cuomo has used state law to obtain settlements from Xcel Energy and Dynegy that require specific disclosures regarding the financial risks from probable climate change regulation and from the physical impacts of climate change. Even more significant is the pressure coming from major purchasers. Wal-Mart, for example, is requiring all its suppliers to report on their GHG emissions and their strategies to reduce their carbon footprints.

The timing, scope and details of the anticipated national program to regulate GHG emissions are still unknown, making it difficult to predict the risks and implications of climate change and its regulation for any individual company, However, even in the face of these uncertainties, disclosure is increasingly the norm, rather than the exception. All public companies need to be analyzing the risks posed by climate change and, depending on the business, should be considering disclosure of those risks in their public filings.

It has been a long time since an environmental issue attracted some serious attention in a presidential campaign. This is the year, and climate change is the issue. From his campaign to his election night reference to a "planet in peril", President-Elect Obama has focused on climate change. There are a few other environmental issues to watch as well.

Climate Change

The issue of climate change overshadowed other environmental issues in this election, in part because it is directly linked to other high priorities of the new administration. Goals of creating 5 million green-collar jobs and a focus on renewable energy and energy conservation enlarge the profile of climate change initiatives. For example, on the Obama-Biden website, the topics of environment and energy are grouped together as one, and the initiatives of each are related.

Green house gases reduction is an important goal for President-Elect Obama. The goal to reduce greenhouse gases has many parts, but imposing an economy-wide cap and trade system is the centerpiece of the policy. The plan would require that all credits be purchased at auction by industry. Costs to purchase credits could be enormous.

In addition to domestic commitments to climate change initiatives, Obama supports "re-engaging" with the United Nations and the creation of a Global Energy Forum that includes the G8+5 Nations . The initial steps of his international policy may come soon when Obama's representatives will likely visit the climate change talks in Poznan, Poland this December.

The broadening Democratic majority in Congress favors Obama's climate change agenda. In addition to Democratic gains in the House and the Senate, the League of Conservation Voters reports that seven of its 2008 "dirty dozen" legislators were defeated in the 2008 election. Among environmental groups, hopes are high for the new presidency.

But because Obama's objectives require heavy investment in renewable energy, regulatory compliance, and clean technology, they face difficult hurdles. High deficits and the global financial crisis challenge the ability of the federal government to spend, the capacity of private markets to invest, and the resilience of the U.S. economy and industry to weather increased costs of regulation. Great investment would be required for meeting goals for clean coal technology, biofuel development, renewable energy, and energy efficiency.

Other Environmental Issues

Here are some of the other environmental issues to watch.

CERCLA issues have not received great attention so far. However, Obama has suggested reinstitution of the tax on industry to pay for orphaned sites and has emphasized the concept of "polluter pays".

For many years, changes to the General Mining Law of 1872 to impose royalty and/or additional regulation have been proposed and defeated. Although mining law reform has not been a significant part of the presidential campaign, the chances for its passage in the more Democratic congress has increased.

Obama's past opposition to offshore drilling weakened a bit this year in the Senate as a result of a compromised effort. Obama would support offshore exploration in areas already set aside for it, but his opposition to ANWAR remains firm.

It is unclear what priority the Obama administration will place on biodiversity and the Endangered Species Act. Biodiversity has received little attention in the campaign, but the campaign has opposed lessening of ESA consultation requirements.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.